By Emily Brown
LOVINGSTON — More than a year after lawsuits were filed, a judge on Monday ruled Atlantic Coast Pipeline LLC will be allowed to survey land belonging to 29 Nelson County landowners without their permission.
After hours of arguments Monday afternoon, Nelson Circuit Judge Michael Garrett ruled Virginia law allows ACP to enter the defendants’ properties for surveying purposes.
“We’re pleased with the court’s ruling. The judge today reached the same conclusion that every other state and federal court that’s looked at this issue has reached, and that is that we have the right to perform these surveys and that they are necessary to choose the best route with the least possible impact on landowners and the environment,” said Aaron Ruby, a spokesman for Dominion, which is heading the $5 billion, 600-mile project that would cut through West Virginia, Virginia and North Carolina.
Garrett’s ruling was based on his interpretation of the word “and” in the section of the that reads in part: “Any firm, corporation, company, or partnership, organized for the bona fide purpose of operating as a natural gas company … may make such … surveys for its proposed line or location of its works as are necessary (i) to satisfy any regulatory requirements and (ii) for the selection of the most advantageous location or route, the improvement or straightening of its line or works, changes of location or construction, or providing additional facilities …”
Lawyers for the 29 landowners argued “and” should be strictly interpreted as “conjunctive,” meaning ACP would be required to comply with both the “satisfy any regulatory requirements” and the “selection of the most advantageous location or route …” portions of the code.
Garrett, however, said he believes the code says natural gas companies can survey without landowners’ permission as long as they do so for at least one of the two purposes.
“We thought that’s what it would come down to,” said Chuck Lollar, a defense attorney representing several Nelson landowners, “and we were hoping he would read ‘and’ to mean ‘a-n-d,’ just like you learned in elementary school.”
ACP lawyers argued Monday the surveys were important in finding the best route with the least impact on the environment and landowners.
Mike Derdeyn, an attorney representing several of the defendants, argued if Garrett ruled both portions of the code had to be satisfied, ACP would have had to do more to prove surveys are needed to satisfy requirements of the Federal Energy Regulatory Commission review process.
Garrett also denied a motion by Lollar and defense attorney Ben Perdue that sought to keep Atlantic Coast Pipeline surveyors from entering their clients’ properties until the Virginia Supreme Court hands down its rulings in other ACP surveying appeals, which have not been scheduled yet.
Surveys of the 29 properties should take place in February, Ruby said. The 29 landowners already were sent notices with dates on which surveyors intend to enter the properties, “so they know we’re going to be there,” Ruby said.
In another pipeline case heard separately Monday, Garrett ruled again in favor of the Atlantic Coast Pipeline, allowing the company to survey land belonging to Wintergreen Country Store off Route 151 in Nellysford.
Several more Atlantic Coast Pipeline surveying lawsuits involving Nelson landowners have yet to be heard.
Pipeline opponents rallied Monday outside the courthouse. About 50 people displayed handmade, anti-pipeline signs ahead of the hearing as a show of support for the landowners involved in the surveying lawsuits.
Wisteria Johnson, another of the 29 defendants, said after the hearing the ruling dealt a blow to her family’s history. “We’re way back in the mountain. My ancestors chose to stay back in the mountain so they could stay out of all this, and the pipeline is now coming through our property,” Johnson said. “… My family for generations has been struggling to hold onto a little piece of mountain. These people with their suits and their ties are coming in, and they’re invading it.”
The ACP currently is being reviewed by FERC, which has said it will make a final decision on whether to authorize the pipeline by late September.